affirmative action

Political “commentator Andrew Bolt ‘was found guilty Wednesday of breaking Australian discrimination law by implying that fair-skinned Aborigines chose to identify as indigenous for profit and career advancement.’ A judge ‘said he will prohibit reproduction of the offending articles,’ and ‘Bolt and his publisher must meet with the plaintiffs to discuss appropriate court orders that would reflect the judgment.’”

This is an extremely damaging blow to free speech. The problem of fraud in affirmative action programs is neither new nor rare. People who are not minorities often pretend to be minorities in order to obtain benefits under affirmative-action programs and racial set-aside schemes. (The Massachusetts Supreme Court upheld the firing of two brothers who pretended to be black to receive preference in hiring). And people often push the envelope in claiming minority status when they have only a small fraction of non-white or minority ancestry. (For example, beneficiaries of affirmative action included people who were only one-quarter Hispanic, under a consent decree in the U.S. v. New York City Board of Education case.)

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Congress and the Obama administration refused to do anything about the corrupt government-sponsored mortgage giants, Fannie Mae and Freddie Mac, even though administration officials admitted that they were at the “core” of “what went wrong” in our financial system.  Doing so was just “too hard,” they claimed, and too time-consuming.

But they did find time in their financial “reform” legislation to push racial quotas at the Federal Reserve, requiring each Federal Reserve Bank to establish an “Office of Minority and Women Inclusion” to “increase the participation of minority-owned and women-owned businesses in programs and contracts.”  This requirement is the brainchild of Los Angeles Congresswoman Maxine Waters, the Castro-loving, left-wing ideologue who earlier praised the Los Angeles race riots that destroyed scores of Korean-owned businesses as an “uprising” against injustice.

Forget about those pesky Supreme Court decisions saying that racial preferences are presumptively unconstitutional and subject to strict scrutiny, and not permissible to promote “racial balance.”  Apparently, they are obsolete in the era of “hope and change.”  Plenty of other changes are afoot too.  Obama fired an inspector general for exposing corruption by one of his cronies.  And the Obama Justice Department illegally defied the Civil Rights Commission to cover up the fact that the administration let members of the racist, anti-Semitic New Black Panther Party get away with voter intimidation.

Class-action lawsuits all too often benefit only the lawyers, not the allegedly victimized consumers they claim to represent.  The Center for Class Action Fairness takes aim at such abuses.

Today, it filed a brief with the Ninth Circuit Court of Appeals “appealing a district court’s controversial approval of a class action settlement where attorneys recovered a $850,000 fee for themselves despite failing to provide any benefit to the class.” The lawsuit, “In re Bluetooth Product Liability Litigation, No. 07-ML-1822, alleged that three manufacturers of Bluetooth headsets for cell phones committed consumer fraud because consumers might not be aware that extensive use of headsets at high volume could cause hearing loss. Before the district court could rule on a pending motion to dismiss, the parties settled, with $100,000 going to charity, minor changes to defendants manuals and websites, and $850,000 to the attorneys — an 850% contingency fee. The purportedly injured class members received nothing.” Despite objections, “the district court approved the settlement and the entirety of the fees.”

In short, the lawyers ripped off their clients, with the trial judge’s blessing.

Earlier, I wrote in the Washington Post about how class-action lawsuit “settlements intended to benefit consumers get paid instead to groups that lobby for affirmative action, hate-crimes laws, undocumented immigrants, and public funding for abortions.”  (See Hans Bader, “Not Their Money to Give Away,” Washington Post, December 22, 2007, at A16).

The Washington Post similarly lamented how federal judges use such settlements for purposes unrelated to the underlying lawsuit, giving the money to “religious organizations,” “law schools,” and other organizations that “hire lobbyists” to influence judges  (See Editorial, “When Judges Get Generous,” Washington Post, December 17, 2007, at A20).

The practice seems to be even worse in state court than federal court.  As I noted in 2007, “In California state court, leftover money from a consumer class action settlement is commonly given not to consumer groups, but to groups that have nothing to do with consumers, like the left-wing La Raza Legal Center; the politically correct Employment Law Center of the San Francisco Legal Aid Society (which seeks to curb employers’ First Amendment rights); the ever-litigious Lawyers’ Committee; and groups that specialize in advocating affirmative action, broader definitions of ‘hate crimes’ (at the expense of civil liberties), or expanded access to welfare programs for illegal aliens. This ripoff of consumers is magnified as a result of practices like ‘fluid recovery.’”

The federal government’s $800 billion stimulus package, which failed to cut unemployment, is now forcing states and local governments to raise taxes. The Wall Street Journal describes how “stimulus dollars came with strings attached that are now causing enormous budget headaches . . . At the behest of the public employee unions, Congress imposed ‘maintenance of effort’ spending requirements on states. These federal laws prohibit state legislatures from cutting spending on 15 programs,” such as ”welfare, if the state took even a dollar of stimulus cash,” even if a state’s tax revenue has since fallen due to the recession.  “So when states should be reducing” their spending ”to match. . . lower revenue collections, federal stimulus rules mean many states will have little choice but to raise taxes.”

Obama claimed the stimulus package was needed to prevent the economy from suffering from “irreversible decline,” but the Congressional Budget Office admitted that the stimulus package actually would shrink the economy “in the long run.”  Unemployment has skyrocketed past European levels, as big-spending countries have fared worse than thrifty ones.

The Washington Examiner says that “75,000 jobs” Obama has claimed credit for are “clearly imaginary” or “highly doubtful.”  That includes thousands of jobs the administration claims credit for creating in nonexistent Congressional districts. As the Examiner notes:

If his stimulus program was approved, Obama promised, unemployment would not go above 8 percent this year. The reality is that it passed 10.3 percent in October. So now the stimulus books are being cooked to mollify an anxious public worried that real-world jobs continue to disappear and angry that Obama has thrown almost $1 trillion down the stimulus rathole.

The stimulus package actually destroyed thousands of real world jobs by triggering trade wars with Canada and Mexico that killed jobs in America’s export sector (the stimulus package barred a measley 97 Mexican truckers from U.S. roads, a minor NAFTA violation that led to massive Mexican retaliation against U.S. exports of 40 farm products and kitchen goods worth $2.4 billion).  It also is wiping out jobs by inflicting costly mandates on state governments (such as repealing welfare reform, and imposing costly “prevailing wage” regulations and expensive racial set-asides).

The stimulus package has since spawned countless examples of government waste and corruption.  Recently, Obama fired an inspector general, Gerald Walpin, who uncovered millions of dollars of waste and fraud in the AmeriCorps program, including by a prominent Obama supporter, endangering the Obama supporter’s ability to administer federal stimulus spending in Sacramento.  Obama’s alleged justification for firing the inspector general turned out to be false.

Florida Attorney General Bill McCollum is questioning whether it is constitutional to force people to buy health insurance, as the health care bills backed by the Obama administration require.  This “individual mandate” is unprecedented and appears to exceed Congress’s power under the Commerce Clause of the Constitution.

As the Congressional Budget Office noted in 1994“,

A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.

As the news story about the attorney general’s concerns notes, in Supreme Court decisions issued in 1995 and 2000, “the high court said the commerce clause is limited to economic activities that substantially affect interstate trade in goods and services.”  (I was involved as an attorney in the latter of those two decisions, United States v. Morrison (2000)).

The individual mandate does not regulate activities, much less economic activities, but rather regulates based on inactivity, by penalizing those who decline to buy a product, health insurance (a product that young people generally do not need — as a young man, I did not go to the doctor or dentist, or purchase any drugs, for a 10-year period, and if I had become ill, my family could have easily paid my expenses).

That exceeds Congress’s powers under its Morrison and Lopez rulings, as I explained yesterday in a more extended analysis of the issue.  However, it is likely that at least four members of the current Supreme Court would vote to uphold the individual mandate, since the Morrison and Lopez decisions were 5-to-4 decisions.

Other aspects of the health care bills have also attracted legal criticism, such as their racial preferences and racial discrimination (it discriminates against white applicants in some provisions, and against minority patients in others; both forms of discrimination drew criticism from the Civil Rights Commission), and the manner in which they regulate insurance companies.

Regardless of whether the individual mandate is constitutional or not, it is certainly controversial — as are other aspects of the health care bills, which most Americans oppose.  As noted earlier, the bills would reduce life-saving medical innovation, raise many taxes, drive up insurance premiums and the deficit, break many campaign promises, and impose heavy burdens on state budgets.  They would also jeopardize the quality of medical care for many, while imposing restrictions that failed when tried at the state level, and ignoring advice from federal and academic experts, and lessons from countries with universal health care, about how to keep costs down.

President Obama’s $800 billion stimulus package creates imaginary jobs, while destroying ones in the real world.

Billions from the stimulus are being spent on creating tens of thousands of imaginary jobs in 440 phantom Congressional districts, according to the government’s own web site:

Just how big is the stimulus package? Well for one, it has doubled the size of the House of Representatives, according to recovery.gov, which says that funds were distributed to 440 congressional districts that do not exist. . . . The web site operates on an $84 million budget and is tasked with monitoring the distribution of the $787 billion stimulus package passed by Congress–which, for the record, counts 435 members–in early 2009.

The site’s monitors, however, are not too savvy about America’s political or geographic landscape. More than $2 million was given to the 99th District of North Dakota, a state which has only one congressional district. In order to qualify for 99 districts, North Dakota would have to have a population of about 60 million people, almost 24 million more people than California.

From ABC News:

Here’s a stimulus success story: In Arizona’s 15th Congressional District, 30 jobs have been saved or created with just $761,420 in federal stimulus spending. At least that’s what the website set up by the Obama Administration to track the $787 billion stimulus says.

There’s one problem, though: There is no 15th Congressional District in Arizona; the state has only eight Congressional Districts.

There’s no 86th Congressional District in Arizona either, but the government’s recovery.gov Web site says $34 million in stimulus money has been spent there.

In fact, Recovery.gov lists hundreds of millions spent and hundreds of jobs created in Congressional districts that don’t exist.

The Washington Examiner says that “75,000 jobs” Obama has claimed credit for are “clearly imaginary” or “highly doubtful.” Readers can view its interactive map of “Inflated Jobs by State.

As the Examiner notes, “If his stimulus program was approved, Obama promised, unemployment would not go above 8 percent this year. The reality is that it passed 10.3 percent in October. So now the stimulus books are being cooked to mollify an anxious public worried that real-world jobs continue to disappear and angry that Obama has thrown almost $1 trillion down the stimulus rathole.”

The stimulus package actually destroyed thousands of real world jobs by triggering trade wars with Canada and Mexico that killed jobs in America’s export sector (the stimulus package barred a measley 97 Mexican truckers from U.S. roads, a minor NAFTA violation that led to massive Mexican retaliation against U.S. exports of 40 farm products and kitchen goods worth $2.4 billion).  It also is wiping out jobs by inflicting costly mandates on state governments (such as repealing welfare reform, and imposing costly “prevailing wage” regulations and expensive racial set-asides).

Obama claimed the stimulus package was needed to prevent the economy from suffering from “irreversible decline,” but the Congressional Budget Office admitted that the stimulus package actually would shrink the economy “in the long run.”  Unemployment has skyrocketed past European levels, as big-spending countries have fared worse than thrifty ones.

The stimulus package has since spawned countless examples of government waste and corruption.  Recently, Obama fired an inspector general, Gerald Walpin, who uncovered millions of dollars of waste and fraud in the AmeriCorps program, including by a prominent Obama supporter, endangering the Obama supporter’s ability to administer federal stimulus spending in Sacramento.  Obama’s alleged justification for firing the inspector general turned out to be false.

Today, President Obama signed into law a bill that will dramatically expand the federal hate crimes law, enabling prosecutors to bring federal charges against people who were previously found innocent of hate crimes in state court.  The hate-crimes provisions were added to a defense appropriations bill, which the President signed in a White House signing ceremony this afternoon at around 2:30 p.m.

The new law dramatically expands the reach of the existing federal hate-crimes law that was already on the books, by getting rid of the requirement that a hate crime affect federally-protected activities to be prosecuted in federal court.  It also adds sexual orientation, gender, disability, and transgender characteristics to a law that was originally designed to protect racial minorities.

The hate-crimes bill was opposed by the U.S. Commission on Civil Rights for allowing the reprosecution in federal court of people found innocent in state court.  The Commission called the new law a “menace to civil liberties” because it is an end-run around constitutional guarantees against double jeopardy.

As explained earlier, the bill’s sponsors seek to use it to reprosecute people in federal court who have already been found innocent of hate crimes in state court, taking advantage of the “dual sovereignty” loophole in constitutional protections against double jeopardy.  Civil libertarians like Nat Hentoff and Wendy Kaminer thus object to the bill on double-jeopardy grounds.   Backers of the bill, like the Leadership Conference on Civil Rights and Commissioner Michael Yaki, supported the bill partly as a way of prosecuting all over again people who were either found not guilty, or who were convicted only of ordinary crimes, while being acquitted of hate-crimes (like the teenagers acquitted of hate crimes in the Shenandoah incident, and the California case of Joseph Silva and George Silva).

Such re-prosecutions can be an enormous waste of money, and grossly unfair to the people who are reprosecuted, driving them into bankruptcy to pay lawyers to represent them all over again when they have already been found innocent in state court after an expensive trial.  When the government re-prosecutes someone, it gains an enormous tactical advantage over the defendant from using the prior prosecution as a test-run, even if the defendant is innocent — making a guilty verdict possible even if the defendant is in fact innocent.

The bill also raises serious constitutional federalism issues under the Supreme Court’s Morrison decision.

Passage of the bill was aided by lousy reporting, in which some journalists, like Reuters, depicted the bill as simply a harmless measure to add sexual orientation to the list of protected characteristics covered by the federal hate-crimes law, ignoring its many other, far more important (and dangerous) changes to federal hate-crimes law.

Many supporters of the hate crimes bill want to allow those found innocent to be reprosecuted in federal court. As one supporter put it, “the federal hate crimes bill serves as a vital safety valve in case a state hate-crimes prosecution fails.” The claim that the justice system has “failed” when a jury returns a not-guilty verdict is truly scary and contrary to the constitutional presumption of innocence and the right to trial by jury.

But it is a view widely shared among supporters of the hate-crimes bill. Syndicated columnist Jacob Sullum pointed out in 1998 that Janet Reno, Clinton’s Attorney General, backed the bill as a way of providing a federal “forum” for prosecution if prosecutors fail to obtain a conviction “in the state court.”

Supporters of the hate crimes bill also see it as a way to prosecute people even in cases where the evidence is so weak that state prosecutors have decided not to prosecute. Attorney General Eric Holder has pushed for the hate crimes bill as a way to prosecute people whom state prosecutors refuse to prosecute because of a lack of evidence. To justify broadening federal hate-crimes law, he cited three examples where state prosecutors refused to prosecute, citing a lack of evidence. In each, a federal jury acquitted the accused, finding them not guilty.

As law professor Gail Heriot notes, “Some have even called for federal prosecution of the Duke University lacrosse team members–despite strong evidence of their innocence.”  Advocates of a broader federal hate-crimes law have pointed to the Duke lacrosse case as an example of where federal prosecutors should have stepped in and prosecuted the accused players — even though the state prosecution in that case was dropped because the defendants were actually innocent, as North Carolina’s attorney general conceded (and DNA evidence showed), and were falsely accused of rape by a woman with a history of violence (including trying to run over someone with her car) and making false accusations.

The Obama administration has long supported the hate-crimes bill, which it used as a wedge issue in the 2008 election.

As law professors like Jonathan Turley and Eugene Volokh have noted, the Obama administration recently urged restrictions on hate speech at the United Nations, joining in calls to treat such speech, protected by the First Amendment under Supreme Court rulings, as a human-rights violation in violation of international human-rights treaties. In the U.S., college hate-speech codes have been used to discipline students for criticizing affirmative action, discussing the racial implications of the death penalty, and calling homosexuality immoral.  In Canada and Britain, hate speech laws have been used to punish religious criticism of Scientology and homosexuality.

Constitutional law professor Rob Natelson argues that Obama’s health-care plan is unconstitutional in four different ways. The U.S. Commission on Civil Rights says that the racial preferences and quotas contained in ObamaCare are likely unconstitutional.

Professor Natelson says that ObamaCare is unconstitutional because:

“1. It is not based on any enumerated power of Congress, not even on a very expansive reading of the power to regulate interstate commerce.

2. It relies on Excessive Delegation of the type held unconstitutional in Schechter Poultry.

3. It violates Substantive Due Process, and interferes with doctor-patient medical decisions to a vastly greater extent than did the laws declared unconstitutional in Roe v. Wade.

4. It violates the Tenth Amendment by commandeering state governments.”

(However, commenters in response to Professor Natel’s post argue that by the time any challenge to ObamaCare reaches the Supreme Court, Obama will have packed the court with liberal justices who are unsympathetic to such arguments).

The U.S. Commission on Civil Rights has criticized the racial preferences in the health-care bill backed by Obama, saying that they are likely unconstitutional under the Supreme Court’s Adarand decision, which subjected race-based affirmative action to “strict scrutiny” and barred federal racial preferences absent evidence that they are needed to remedy intentional past discrimination by the government. (In cases like Rothe Development Corp. v. Department of Defense and the Western States Paving case, the courts have sometimes struck down federal affirmative-action plans sponsored by liberal lawmakers, citing the Supreme Court’s Adarand decision. ObamaCare goes even further in mandating the use of race than past affirmative action plans.)

Fact checkers say Obama is lying about health care. ObamaCare will cost far more than its predicted trillion-dollar price tag.

One of Obama’s own advisers says the Obama Administration’s health-care plan will harm people with insurance while raising their taxes. Obamacare will take away 5 important freedoms, notes a CNN commentary. It will also destroy many affordable health-care plans while breaking Obama’s campaign promises.

Germany is a lot smaller than the U.S., but it has a lot more health insurers to choose from, and cheaper health-care costs. One reason might be more competition: in the U.S., you can’t buy individual health insurance from an out-of-state insurer, since an obsolete federal law lets states block purchases across state lines, taking away interstate-shopping rights that citizens would otherwise enjoy under the the Constitution’s Interstate Commerce Clause. That leaves patients with fewer choices, higher prices, and less competition among insurers, who may control as much as 80 percent of the market in a particular state. In Germany and France, by contrast, you can buy from an insurer anywhere in the country.

The so-called health-care “reform” bills backed by Obama actually worsen this situation, by extending the reach of this anti-consumer restriction on competition beyond individual health-insurance policies to many employer-based health-insurance policies. They do this by gutting the preemption provisions of a federal law known as ERISA.

When John McCain proposed cutting the cost of health insurance by letting Americans shop for cheaper insurance across state lines — the way they can buy almost any other product across state lines — he was bashed by the Obama campaign and Joe Biden.

Washington Post columnists explain how ObamaCare would make the status quo even worse in many other ways as well, while exploding health-care costs. ObamaCare will cost far more than its predicted trillion-dollar price tag. Charles Krauthammer explains how the cost-savings Obama keeps talking about are mythical and non-existent.

Fact checkers say Obama is lying about health care.

One of Obama’s own advisers says the Obama Administration’s health-care plan will harm people with insurance while raising their taxes. Obamacare will take away 5 important freedoms, notes a CNN commentary. It will also destroy many affordable health-care plans while breaking Obama’s campaign promises.

ObamaCare also contains costly racial preferences and affirmative action, subsidies for left-wing community organizers, and preferences for illegal aliens, who are exempt from its taxes and penalties, but could access its benefits due to lack of meaningful eligibility verification safeguards.

Obama is also reenforcing the corrupt political status quo that helped trigger the financial crisis and mortgage meltdown. He wants to create a new bureaucracy to increase the pressure on banks to make risky, low-income loans.

The recession has ended in France, which avoided adopting a massive stimulus package like Obama’s $800 billion stimulus package.

France’s conservative President adopted a much smaller $31 billion stimulus package, which, unlike Obama’s, was focused on productive investment, not welfare or social services. $14.5 billion of France’s stimulus package was earmarked for injection “into private sector enterprises.” Billions more were for investments in infrastructure, construction projects, and railways.

In the U.S., Obama pushed through a much more costly, welfare-filled $800 billion stimulus package through fear-mongering. Obama claimed his stimulus package was needed to prevent “disaster” and “irreversible decline.”

But the Congressional Budget Office admitted that the stimulus package would shrink the economy “in the long run.” The stimulus package has since destroyed thousands of jobs in America’s export sector, and subsidized countless examples of government waste and corruption.

The Obama Administration purged the stimulus package of most of the investments in roads and bridges originally suggested by economists, and filled it instead with welfare and social spending, out of political correctness, after feminist leaders complained that building and repairing roads and bridges would put unemployed blue-collar men to work, rather than women.

As Christina Hoff Sommers points out, “Men are bearing the brunt of the current economic crisis because they predominate in manufacturing and construction, the hardest-hit sectors, which have lost more than 3 million jobs since December 2007. Women, by contrast, are a majority in recession-resistant fields such as education and health care, which gained 588,000 jobs during the same period.”

But when the Administration floated the concept of “an ambitious . . . stimulus program to modernize roads, bridges, schools, electrical grids, public transportation, and dams” as a way of “reinvigorating the hardest-hit sectors of the economy,” “Women’s groups were appalled,” asking “Where are the New Jobs for Women?” and denouncing what they called “The Macho Stimulus Plan.”

The Obama Administration quickly knuckled under to this pressure, replacing its recovery package with an $800 billion stimulus package that instead “skews job creation somewhat towards women” by spending money instead on social services like welfare that are administered mostly by female employees.

“A recent Associated Press story reports: ‘Stimulus Funds Go to Social Programs Over ‘Shovel-ready’ Projects.’ A team of six AP reporters who have been tracking the funds find that the $300 billion sent to the states is being used mainly for health care, education, unemployment benefits, food stamps, and other social services.” Or, as another AP report put it, “Stimulus Aid Favors Welfare, Not Work, Programs.” Less than 6 percent of it ended up going to transportation.

The stimulus package also repealed welfare reform, as Slate’s Mickey Kaus and the Heritage Foundation have noted. Obama ran campaign ads claiming to support welfare reform, even though he had actually fought against meaningful welfare reform as an Illinois legislator. The stimulus package largely repeals the welfare-reform law passed by Congress in 1996.

Recently, Obama fired an inspector general, Gerald Walpin, who uncovered millions of dollars of waste and fraud in the AmeriCorps program, including by a prominent Obama supporter, endangering the Obama supporter’s ability to administer federal stimulus spending in Sacramento.

The stimulus package also imposes on states racial set-aside requirements and prevailing-wage requirements, which increase the cost to taxpayers of government contracts. The prevailing-wage requirements will inflate the cost of state construction and transportation projects by at least $17 billion. Racial set-asides also are very costly to taxpayers.

Racial quotas, set-asides, and affirmative action are also mandated by Obama’s health-care plan, drawing criticism from the U.S. Commission on Civil Rights

Earlier, the Civil Rights Commission criticized the Obama Administration for turning a blind eye to racist voter intimidation by black panthers, including an Obama poll watcher and Democratic official who used a nightstick and racial epithets to drive white voters away from a Philadelphia polling place.